The Jewish legal position in Poland

This rapidly accelerating settlement of the new, religiously and culturally alien people not belonging to any Christian group, required a quick adoptionof some regulative measures. From the beginning of theJewish settlementin Poland they were officially considered to be the “servants of the Treasury” (servi camerae regiae) i.e.theywere legallyand directlythe ruler’s subjects. They had their own laws and the right to form communities separate from the Christians. The very term servi cameraeappeared- as mentioned-forthe first time inthe Holy Ro­ man German Emperor’s privilege for the Austrian Jews. It seems that the term wasthereinterpreted as “servants”,or “slaves”, of the Royal Treasury. They were royal property,practicallydeprived of control over their lot. Such an interpreta­ tion of this term appeared simultaneously with a novel theological concept of the “slavery of the Jews” (servitus Judeorum) which was used by the Christian theologians to justify the lack of personal freedom of Jews. In such a perspec­ tive, in Western Europethey were donated as agiftor leftas a pawn to towns or magnates with a right of debtors, especially the monarchs, to have Jewishdebts cancelled. There was anadditional, generally-recognized,principle inthe Empire

2. The original Jewish legal position in the Polish Kingdom 117 that the laws issued by the Crownor by state legislatures shouldmake Jews the least harmfulto the state.71

71 T. Czacki, Rozprawa o Żydach i Karaitach (Discourse on Jews and Karaites), Nakł.

Wydawnictwa Biblioteki Polskiej, Kraków 1860, pp. 31-32, 34-35, Biblioteka Polska, S. 5, No. 30, 44.

72 W. Tyloch,‘Przywileje dla Żydów...’, p. 17.

73 S. Grodziski, ‘Z dziejów krakowskiego sądownictwa wojewodzińskiego nad Żydami’

(From the History of Voyvode Jurisdiction over the Jews) in A. Link-Lenczowski, T. Polań­

ski (eds.), Żydzi w dawnej Rzeczypospolitej..., p. 105.

74 Ibid., pp. 105-109.

In Poland, it seems, the termservi camerae was interpreted in a specific way.

Jews were not the Treasury’s property, such a status pertained only to slaves.They werefree people, although subjects of theking. In his privilege of 1364, Kazimierz Wielki (Casimir the Great) stated that he was granting thisprivilege to the Jews in Poland since “theyendeavored to multiplytheprofitsof his Treasury(utilitates cam­

erae nostrae augere cupientes)".So, the term servi cameraeshould be understood in amorehumanitarian way as “thepayers of the royal tax ”72. The theologicalconcept ofservitus Judeorum accepted in the West was also not exposed in Poland. Jews werein theory subjected administratively to theking’s magistrate named avoivode as his highest official in a particular province, who was there ercising the king’s jurisdiction. Thus, Bolesław Pobożny (Boleslaw thePious) privilegeof 1264 stated that the court of the Prince himself or the Jewish court of the voivode{sąd wojew­

ody)or ajudge assigned by thelatter {sąd wojewodzinski)was acourt for theadjudi­ cation of casesbetween Jews andbetweenthem andChristians.

Jews usually resided in towns, but adjudication ofcases was not given to the town’s court.They had yettodefendthemselvesagainst being sued in othercourtsof the feudal estate court system, thepractice based on arule lexloci delicti.Thebasic legalrule actor sequitur forum rei also applied in principleto them. But they could notyet be suedbythe ecclesiastical courts, according toaformulathatIudaeus non debet citariiniurespirituali...pro quacunque re.73.The voivode Jewishcourt was not exclusive and some jurisdictionwas taken outof its reach. Forinstance,the king Ka­

zimierz Jagiellończyk limited the jurisdictionofthe voivode court, assigningtrivial civil matters between Jews to the jurisdiction ofalocalkahal, the court ofthe elders in the kahal {parnassim),probably legalizing thealready-existingpractice. Itexisted most likelyfromthebeginningof the Jewish kehilot in Poland, although it appeared in historical sources only inthe 15th century. Atthe top of the judicial system, also in relation to Jews, was the King’s Court, which constitutedin all cases until 1578 thecourt of the appellate jurisdictionofthe last instance.It isinteresting tonote that since 1702, in the light of a privilege given to Jews by King August II Saxon, the JewishCourt ofElderscould not onlyadjudicate in cases between Jews witha right of appeal to the voivode court but also in mixed cases. A Christiancould also sue a Jewin trivial civil or criminal cases in that court.74

118 2. The original Jewish legal position in the Polish Kingdom

Therising power of the nobility and the growing numberof Jews on private es­ tates put pressure on theking’sjurisdictionto subject such Jews to the jurisdictionof theprivate owners, aprivilege the nobility already had in relationto their peasants granted tothem in the privilege ofPiotrkówin 1496. In turn a constitution (bill) of the Polish Parliament (theSejm Walny), consisting ofthree chambers: the King, the Senate andtheChamberof Deputies,granted thenobles in 1539 similar jurisdiction over the Jews on their estates. This way the King Zygmunt I the Old officiallyre­

leased such Jews from his jurisdiction.75 But thesituationstillremainedcomplicated.

Sources show that although theJews weresubject tothe voivode court on the king’s lands and the noblity court in the private estates after 1539, they were also depend­ ent on the starosta - the towns’or ecclesiasticalauthorities, oftenon jurisdictional matters as well. RelationsbetweentheJewishself-governmentatthelocallevel and thelevel of the entireCommonwealthwere also not entirelyclear.76

75 S. Grodziski, I. Dwornicka, W. Uruszczak (eds.), Volumina Constitutionum, T. 1, 1493-1549, Vol. 2, Wydawnictwo Sejmowe, Warszawa 2005, p. 199.

76 See A. Michałowska-Mycielska, ‘Wstęp’ in eadem (ed.), Sejmy i sejmiki koronne wobec Żydów. Wybór tekstów źródłowych (The Sejms and the Sejmiki in Poland and Jews. A Se­

lection of Source Texts), Wydawnictwa Universtytetu Warszawskiego, Warszawa 2006, p. 11.

77 B. D. Weinryb, The Jews in Poland. A Social and Economic History of the Jewish Com­

munity in Poland from 1100 to 1800, Jewish Publication Society of America, Philadelphia 1973, p. 36.

78 J. Bardach, ‘Voice in a discussion’ in A. Link-Lenczowski, T. Polański (eds.), Żydzi w dawnej Rzeczypospolitej..., p. 352. The courts attempted to introduce such a formula but the Kings prevented it.

79 See L. Gumplowicz, Prawodawstwo polskie względem Żydów (Polish Legislation Concerning the Jews), J. M. Himmelblau, Kraków 1867, p. 20; B. D. Weinryb, The Jews of Poland..., p. 37; M. Horn, Powinności wojenne Żydów w Rzeczypospolitej w XVI i XVII w.

(Military Duties of the Jews in Poland in the 16th and 17th Century), Państwowe Wydawnictwo Naukowe, Warszawa 1978.

The Kings Władysław Jagiełło (1386-1434), Kazimierz Jagiellończyk (1447--1492) andAleksander I(1501-1505)protected the Jews ofthe Kingdom of Poland treating the principle oftolerance as consistent with the divine order.77 The actual practice testified tothis. In Poland- Lithuania, the kings didnot drive the Jewsout, except during a short periodbetween 1495 and 1503 in Lithuania,andin 1495 when they were forced out from Krakówto nearby Kazimierz. The Polish kings did not cancel their debts anddid not confiscate Jewish property. The Jewsdid not have to pledge a degrading oath (morejudaico) as wasthe case in Germany, and they were providedprotection against thepartialityofwitnesses.78 So,the Jewsin Poland were free people with a professional status similar to that ofthe burghers, andin some personalrights equal to the gentry. Forinstance, in theroyalprivilegeof 1364 a fine for the wounding of a nobleman wasthe same as for thewoundingof a Jew, the killer ofa Jew was subject to the death penalty. Jews paid the same taxesas the burgh­ ers and had the same rights of settlementand trade. They could also carry arms.79

2. The original Jewish legal position in the Polish Kingdom 119 They consideredthemselves tobeas free as the nobility.80 The famous rabbi Solo­

monLuria(1510-1573) wasof the opinion thattheprivileges granted tothe Jewsin Poland made their freedom equivalenttothe freedom ofthe nobility, andthe Jewish elites had a profound feeling of freedomderived from the importance of the posts they held.It often happenedthat, on the basis of their privileges, they claimed their rightsandrefusedto appear beforethe Polish courts or refused to pay taxes.81

80 Of course, although the Jews in the Polish Kingdom were free, their position was not equal to that of the nobility. Since the 16th century especially, only the nobility considered themselves to be citizens, comprising the political nation. The rest - the burghers, the peasants, the Jews- were the subjects, either of the King (the burghers, the Jews), or the King, the Church and the nobility.

But the legal meaning of “being a subject” in the adjacent absolutist monarchies, seems to be dif­

ferent than in Poland. In the Polish Kingdom the phrase “being a subject” gave subjects a much wider, in theory and in practice, legal protection.

81 B. D. Weinryb, The Jews of Poland. ..,pp. 50-51.

82 ‘Lithuania’ in I. Singer et al. (eds.), The Jewish Encyclopedia, Vol. 8 (1904), <http://

www.jewishencyclopedia.com/articles/10033-lithuania>, 7 December 2012.

83 L. Gumplowicz, Prawodawstwo polskie..., pp. 47-49, 103. In a way, the tradition of Ro­

man law supported the demands of ecclesiastical law especially since this law was studied at the Kingdom’s universities, in Kraków since 1364 and in Vilna since 1579; seee.g. CJ.1.9.3,CJ.1.9.5, Thesituation was similar in Lithuaniawhich formed apersonalunionwith Po­

land since 1385.The Lithuanian Jews were freemen, apolicy enacted by theGrand DukeWitold (1401-1430). Theywere subject in all criminalcases directly to the jurisdiction of the Grand Duke andhis official representatives, and inpetty suits

subject to the jurisdictionof local officials onequal footing with the lesser nobles, boyars, and otherfree citizens. The official representative of the Grand Dukewas the starosta, acting as the Jewish judge {judex Judaeorum), andhis deputy. The Jewish judge decided all cases between Christians and Jews in all criminal suits in whichJewswere involved. Incivil suitshe acted only on theapplicationof the interested parties. His duties includedalso the guardianshipof persons, property, and freedomof Jewish worship. In matters ofreligion the Lithuanian Jews were given extensive autonomy. Kazimierz Jagiellończyk as the Grand Duke of Lithu­ ania (1440-1492), continued the liberal policy of Witold.The Lithuanianrulers of that time alsodid not make any distinctionbetween Rabbinites (proponents of the Talmud) and Karaites (adherents to the Tanakh, the Hebrew Bible), designating both in their decrees merely as Jews {Zhidy). In 1441 Kazimierz Jagiellończyk granted the Magdeburgtown rights to the Karaite Jews ofTroki with additional autonomy in judicial and communal affairs, allowing them one-half ofthe city revenues, and presenting them with aparcel ofland.82

Thelegal autonomy of the respective estates also influenced the Jewish legal sta­

tus. That is why the implementationoftheresolutions passedatthe Church synods was in fact limited.Generally, these resolutions aimed atthestrict separation ofthe Jewish and the Christian communities. They were alsointended to makeJews obey the regulationsof the Christian customs in trade and in public behavior.83Inturnthe

120 2. The original Jewish legal position in the Polish Kingdom

officialpolicy of the nobility towardsJews was not homogeneous either. The laws and resolutions passedbythe local assemblies (theSejmiki)or the national assembly (the Sejm) reflected politicalrelations at a giventime and in differentpartsof the country.84 Their outcome was usuallya compromise betweenthenobilityatthe local level according to their changingneeds and interests, the power ofthe Jewish com­ munity to influence them,the degree of decentralization and later thelevelof corrup­ tion inthe state. Socially and economically theJewsinthe Kingdom were treated as a complementary group within the nobility’s economy. However, in the conditions of the growing decentralization ofpower thestrict controloverthis complementary process wasproving increasingly difficult, with Jews becoming competitors of the nobility inmany fields of economy. Forthisreason, periods ofanti-Jewish and pro-Jewish legislationcamein turns,with an extensive Jewish lobbying always present.

CJ. 1.9.6, CJ.1.9.8; exemplary standard text of Corpus Iuris Civilis with extensive glosses, used in 17th-18th cent. (Lyon 1627 ed.), at <http://digi.ub.uni-heidelberg.de/diglit/justinianl627ga>; see also Decretals of Gregory IX, b. V, title VI, passim, esp. IX prohibiting compulsory baptism. But in the Polish Kingdom the influence of the Roman Law was limited, the common law enacted by the nobility prevailed as the general law.

84 A. Link-Lenczowski, Ludność żydowska w świetle uchwal sejmikowych XVI-XVIII w.

(Jews in the Light of the Resolutions of the Polish Dietines from the 16th to the 18th c.), a paper at a conference “Jewish Autonomy in Pre-partition Poland”, Kraków, September 1986.

The burghers fought against Jewishcompetition either by resolutionsor by ap­

pealing to the king to pass aprivilegedenon tolerandis Judaeis in the royal towns.

Sometimes theymade compromises with thetown Jewsinorderto makethem im­

pose self-restrictions. Buttheking’s protection of “his” Jews inthe royal towns, also sucha protection extended bythe nobility intheirprivate towns, putthe Polish Jews on equal termswith the burghers and sometimes the odds were even in their favor.

However, the royal towns were also the scene of the most spectacular anti-Jewish spontaneous riots ofthe mobs, the most serious causedby the accusations ofthe profanation ofthe host orritual murders.

From the endthe 16th century a gradual shift in power relationsbeganto befelt, the consequence of the Union of Lublin of 1569 and thecolonization ofthe eastern lands as a result of it. The royal authority was growing weaker and the power of the magnates was gradually gettingstronger, with the latter’s power in the eastern part ofthe Commonwealth virtually unfettered. They were even conducting their independent foreign policies. This constituteda strategicshift inthe power relations withinthe Commonwealth and its Jews had to respondtoit.For this reason the most important problem for the Commonwealth Jews from the end ofthe 16th century, which also turned out to be aperiodofspectacularJewishdemographicgrowth, was the problemof the strategy to be pursued in response to this growing decentralization ofauthority.

The Jewsin WesternEurope at the turnof the 17thcentury wentinto an alliance with the absolutist king andhis functionaries. In the Polish-Lithuanian Common­ wealth such an alliance was a virtual impossibility. The king,subject tothegeneral

2. The original Jewish legal position in the Polish Kingdom 121 electionfrom 1573, ceased to be a guarantee of protection. The protective alliance could onlybe formed withthe dominant nobility and withinthis group withthemost powerful magnates. Simultaneously with the gradual weakening ofthe ties between Jews and theirroyal protection an ongoing process ofa weakeningof the ties be­

tween the private towns and the royalauthority also occurred. Initially the private towns, which had existed in Poland from the 13thcentury, weretreatedin the same wayas the royal towns: both were treated as equally subject to public law. From the mid-16th century the real authority, until then belonging to theking, was being passed, in fact if not entirelyin law, into the handsof private owners.85

85 T. Opas, ‘Miasta prywatne a Rzeczpospolita’ (Private Towns and the Republic), Kwartal­

nik Historyczny, No. 77 (1971), pp. 28, 31 and the following. There were three types of towns: the royal ones (the towns of the Kingdom), the private ones (belonging to the nobility and the mag­

nates), and the church ones (diocesian or monastic). A criterion of differentiation was, of course, the ownership. But the royal towns due to the shortage of cash in the treasury were either pledged or given to the magnates to pay for their royal offices, until the death of such an official (in case the office was for life) or until he was recalled or resigned. But in all such cases the royal property was customarily not returning to the King’s domain, becoming a hereditary property of the mag­

nate official. The towns which were pledged were relieved of it during the times of the King Zyg­

munt I the Old (1506-1548). 105 towns were bought back. The King got additional towns from Masovia, incorporated into the Kingdom in 1526 (35 of them). But in between 1548-1558 the King Zygmunt II August pledged or distributed or gave as a fief altogether 58 royal towns which strengthened the magnate group and diminished the royal treasury’s revenues which tempted the King to ask for addictional taxes. The move provoked the opposition of the nobility which organ­

ized itself into the so called Executionist Movement. As a consequence the King agreed to get the pledged and distributed properties back including his towns, with some exceptions. But a resist­

ance of the Lithuanian magnates caused that in the Union of Lublin of 1569 such an execution of property was not to cover the Grand Duchy of Lithuania.

All such pledges of the royal towns made them subject to private ownership and regulations and Jews in the royal towns were part of this process. The great royal towns were in general big­

ger than the private ones. The smallest were the church towns mainly because Jews were usually forbidden, at least at the beginning, to settle there. “At the turn of the 16th century the private towns comprised over 50% of all the towns in the Kingdom. But by the end of the 17th century they constituted nearly 75%> of towns. The situation was similar in other lands as well, except the Royal Prussia where there were no new town foundations, and Podlasie where the royal town still predominated. In the Kingdom of Poland proper, the number ofprivate towns exceeded the num­

ber of the royal towns at the turn of the 17th century." In Rus, Podolia and Lithuania the private towns began to exceed the royal ones even earlier. In the 16th century the royal share in the new town foundations did not exceed 10%, except in Rus where it constituted 16%. The nobility and the magnate foundations comprised nearly 80%. The rest were the church foundations. In Polynia, Podolia and Ukraine the nobility - magnate foundations predominated”. See: ‘Mieszczanie i mia­

sta w dawnej Rzeczypospolitej’, at <http://www.szlachta.intemetdsl.pl/poet.htm>, 16 May 2012.

The Jewisheldersrealized thatuniversal royal privileges couldnolongerguar­

anteethemadequate protection although sometimes this was still the case. For in­ stance, ina decree of February 8, 1638 the Royal Court of Appeals (Sqd relacyjny), on the remission of an assessor’s court recognized and sustained the Jewishright to freely practice their religion in their synagogues salvis tamen iuribus sanctae

122 2. The original Jewish legal position in the Polish Kingdom

Ecclesiae Catholicae Romanae (however, with dueregard forthe rights of theHoly Roman Catholic Church) and revoked nobleman Pawel Studzienski’s privileges.86 But in principle, from 1539 whenthejurisdictionover the Jewsin private towns was taken over bytheir ownerswho obtained the exclusive right togrant privileges and

Ecclesiae Catholicae Romanae (however, with dueregard forthe rights of theHoly Roman Catholic Church) and revoked nobleman Pawel Studzienski’s privileges.86 But in principle, from 1539 whenthejurisdictionover the Jewsin private towns was taken over bytheir ownerswho obtained the exclusive right togrant privileges and